IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50909

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

ANDRE TAYLOR, also known as Andre M. Taylor, also known as Miguel 

Andre Taylor, also known as Andre Miguel Taylor, 

 Defendant - Appellant 

Appeal from the United States District Court

 for the Western District of Texas 

USDC No. 5:13-CR-91-1 

Before WIENER, DENNIS, and HAYNES, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Andre Taylor contends that his sentence was 

wrongfully calculated because he was improperly classified as an armed career 

criminal under the Armed Career Criminal Act (“ACCA”) based on his Ohio 

aggravated burglary convictions. He asserts that those convictions do not 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 3, 2017

Lyle W. Cayce

Clerk

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qualify under the “generic” definition of burglary. We vacate Taylor’s sentence

and remand for resentencing. 

I. 

FACTS

 On September 18, 2015, Taylor was convicted by a jury on two counts of 

being a felon in possession of a firearm.1 His advisory guideline range is 324 to 

405 months of imprisonment. Taylor was subject to an enhanced statutory 

minimum sentence of 15 years per count under the ACCA, in part, because of 

two 1988 convictions for aggravated burglary under Ohio law.2

 

1 See 18 U.S.C. §§ 922(g)(1), 924(a)(2).

2 The Ohio statute in effect at the time of Taylor’s convictions stated:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, 

as defined by § 2909.01 of the Revised Code, or in a separately secured or 

separately occupied portion thereof, with purpose to commit therein any theft 

offense, as defined in section 2913.01 of the Revised Code, or any felony, when any 

of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical harm 

on another;

(2) The offender has a deadly weapon or dangerous ordnance, as defined in 

section 2923.1 of the Revised Code, on or about his person or under his 

control;

(3) The occupied structure involved is the permanent or temporary 

habitation of any person, in which at any time any person is present or 

likely to be present. 

OHIO REV. CODE ANN. § 2911.11(A)(3) (West 1973).

The statutory definition of occupied structure reads: 

[A]n ‘occupied structure’ is any house, building, outbuilding, watercraft, aircraft, 

railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, 

to which any of the following applies:

 

(A) Which is maintained as a permanent or temporary dwelling even though it is 

temporarily occupied, and whether or not any person is actually present;

(B) Which at the time is occupied as the permanent or temporary habitation of any 

person, whether or not any person is actually present;

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Taylor objected to the ACCA enhancement, arguing that his prior 

aggravated burglary convictions were not “violent felonies” under § 924(e)(1) 

because the Ohio statutory definition is broader than the “generic” definition 

of burglary.3 He argued specifically that the statute was overbroad because it 

criminalized entry into non-buildings, for example, tents and watercraft. The 

government countered that the court should use the modified categorical 

approach and review the underlying documents which show that Taylor 

burglarized buildings. The district court overruled Taylor’s objections and 

adopted the recommendation of the presentence investigation report. The court 

imposed concurrent 405-month terms of imprisonment on each count, followed 

by concurrent five-year terms of supervised release. Taylor timely filed a 

notice of appeal. 

II. 

STANDARD OF REVIEW

We review a district court’s interpretation of the Sentencing Guidelines 

de novo.4 We employ a “categorical” approach to compare the elements of the 

state offense and the “generic” offense.5 “Under this approach we look ‘not to 

the facts of the particular prior case,’ but instead to whether ‘the state statute 

 

(C) Which at the time is specifically adapted for the overnight accommodation of any 

person, whether or not any person is actually present;

(D) In which at the time any person is present or likely to be present. 

OHIO REV. CODE ANN. § 2909.01 (West 1973).

3 See Taylor v. United States, 495 U.S. 575, 599 (1990). Taylor renewed his objection 

at sentencing. 4 United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

5 Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). 

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defining the crime of conviction’ categorically fits within the ‘generic’ federal 

definition of a corresponding” crime.6 

III. 

ANALYSIS

The Supreme Court has held that “generic burglary” has the following 

elements: “an unlawful entry into, or remaining in, a building or other 

structure, with intent to commit a crime.”7 Taylor asserts8 that the Ohio 

aggravated burglary statute is broader than the “generic” definition of 

burglary because it criminalizes the entry into places in addition to buildings

and other structures. 

Similar to Taylor, the defendant in Mathis v. United States argued that 

the locational element of Iowa’s burglary statute was broader than “generic” 

burglary because it prohibited trespass into occupied structures including 

“land, water, or air vehicle[s].”9 The Supreme Court agreed and held that the 

Iowa burglary statute was broader than “generic” burglary and could not give 

rise to an enhancement under the ACCA.10 The burglary statute at issue here 

 

6 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v. Duenas–

Alvarez, 549 U.S. 183, 186 (2007)); see also Mathis v. United States, 136 S. Ct. 2243, 2248, 

(2016).

7 Taylor, 495 U.S. at 598. 8 Taylor also contends that the district court erred by applying the modified categorical 

approach to determine whether Ohio aggravated burglary constitutes “generic” burglary for 

the purposes of § 924(e) because the Ohio statute is not divisible. The government concedes 

that, in light of Mathis, the modified categorical approach used by the district court is now to 

be used only when a statute is divisible, and “the modified categorical approach was not the 

appropriate method for determining whether Taylor’s convictions for Ohio aggravated 

burglary qualified as ACCA predicates.” Thus, we do not address the argument that Taylor’s 

convictions could be subject to the modified categorical approach. The government responds 

that, to the extent the district court erred in applying the modified categorical approach, it 

was harmless error because Taylor’s prior convictions constitute “generic” burglary.

9 Mathis, 136 S. Ct. at 2250, 2257; see Taylor, 495 U.S. at 598. 

10 Mathis, 136 S. Ct. at 2257.

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is materially indistinguishable from the Iowa statute in Mathis as to the 

location element. Both statutes criminalize entry into places other than 

buildings and other structures.11 Thus, the Ohio aggravated burglary charges 

may not be used to subject Taylor to an enhanced sentence as an armed career 

criminal under the ACCA.

IV. 

CONCLUSION

We VACATE Taylor’s sentence and REMAND for resentencing

consistent with this opinion. 

 

11 In fact, the Court of Appeals of Ohio affirmed a conviction for aggravated burglary 

of a houseboat, demonstrating that the Ohio statute’s location element is broader than 

“generic” burglary both facially and in practice. State v. Jackson, No. 102271, 2015 WL 

6550676 (Ohio Ct. App. Oct. 29, 2015). Furthermore, after all of the briefs were filed in this 

case, another panel of this court issued an opinion in United States v. Bernel-Aveja, holding 

that the Ohio third degree burglary statute did not constitute “generic” burglary. 844 F.3d 

206, 212-14 (5th Cir. 2016). The Bernel-Aveja panel focused on the intent element of burglary 

and found that because intent could be formed after the underlying trespass, the Ohio third 

degree burglary statute was broader than the “generic” definition of burglary. Id. Even 

though Bernel-Aveja dealt with a different statute than the aggravated burglary statute at 

issue here, the panel relied on an Ohio Supreme Court case interpreting the aggravated 

burglary statute, which held that intent could be formed while the trespass was in progress. 

Id. (citing State v. Fontes, 721 N.E.2d 1037, 1039-40 (Ohio 2000)). Taylor did not argue that 

the statute was overbroad based on the intent requirement, but the government submitted a 

Rule 28j letter acknowledging this new opinion, and it appears the government now concedes 

that, based on Bernel-Aveja, the Ohio aggravated burglary statute is broader than “generic” 

burglary. 

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